Burt, Elizabeth v. Lexington, Town of (SPR 20140248)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords May 12,2014 SPR14/248 Mr. Kevin D. Batt, Esq. Anderson & Krieger, LLP One Canal Park, Suite 200 Cambridge, MA 02141 Dear Attorney Batt: This office has received the petition of Elizabeth A. Burt appealing your responses for the Town of Lexington (Town) to her requests for public records. See G. L. c. 66, § 1O (b ); see also 950 C.M.R. 32.08(6). In a December 5, 2013 request, Ms. Burt sought copies of invoices for legal services performed by your firm for the Town or any of its boards, committees, agencies or employees. In a January 23, 2014 request, Ms. Burt sought copies of records relating to a matter involving the Joseph Estabrook Elementary School. December 5, 2013 Request In a January 14, 2014 response letter to Ms. Burt, the Town provided redacted copies of records responsive to this request. In its response, the Town failed to satisfy its burden with respect to the timeliness requirement of the Public Records Law. A request for public records must be met with a written response within ten (1 0) calendar days of the request. See G. L. c. 66, § lO(b); 950 C.M.R. 32.05. The Town also failed to satisfy its burden with respect to its redaction of responsive 111 inforn1ation from the records provided to Ms. Burt. In its January 14 letter, the Town stated that it was redacting information pursuant to the attorney-client privilege and work product privilege. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10( c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Furthermore, a records custodian seeking to withhold records pursuant to the attorney-client privilege holds the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Kevin D. Batt, Esq. SPR14/248 Page Two May 12,2014 burden of not only proving the existence of an attorney-client relationship, but also establishing: (1) that the communications were received from a client during the course ofthe client's search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co., 449 Mass. fn 9; Colonial Gas Co. v. Aetna Cas. & Sur. Co., 144 F.R.D. 600, 604 (D. Mass. 1992). In its response, the Town stated that it was redacting responsive information pursuant to the aforementioned privileges. The Town has provided no specificity with respect to the applicability of the attorney-client privilege to the records responsive to this request. The Town is not permitted to issue a blanket denial without providing any further inforn1ation with respect to the withholding of responsive information. While the Town also failed to provide specificity with respect to its claim as to the applicability of the work product privilege, the Town is expected to be cognizant of the fact that records considered privileged as work product are not protected from disclosure under the Public Records Law unless those materials fall within the scope of an express statutory exemption. See General Electric Company v. Department of Environmental Protection, 429 Mass. 798, 801 (1999). The Town is hereby ordered to provide Ms. Burt with copies of the unredacted responsive records within ten (10) calendar days, or alternatively to provide this office with a more detailed explanation that will satisfy its burden in responding to this request. January 23, 2014 Request In a February 13, 2014 response letter to Ms. Burt, the Town provided copies of records responsive to this request. The Town redacted certain responsive information pursuant to the attorney-client privilege and Exemptions (d) and (e) of the Public Records Law. In its response, the Town again failed to satisfy its burden with respect to the timeliness requirement ofthe Public Records Law. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.05. The Town also failed to satisfy its burden with respect to the applicability of its exemption claims. See Globe Newspaper Co at 857. The Town provided no specificity or explanation as to the applicability of its exemption claims. The Town is again reminded that it is not permitted to issue such a blanket denial with respect to the requested information.

Mr. Kevin D. Batt, Esq. SPR14/248 Page Three May 12,2014 The Town is hereby ordered to provide Ms. Burt with copies of the unredacted responsive records within ten (1 0) calendar days, or alternatively to provide this office with a more detailed explanation that will satisfy its burden in responding to this request. Accordingly, this administrative appeal is now closed. i liams Supervisor of Records cc: Ms. Elizabeth A. Burt